Presidential Immunity? No Thanks.

Q: Where in the Constitution is any form of immunity specified.   

A: Nowhere

So how is it that the Supreme Court is embroiled in a case in which apparently serious people argue that former President Trump is immunized against criminal prosecution for decisions he made while serving as President?

It is easy enough to argue that the separation of powers that that frames our legal and political system precludes any criminal prosecution of the president while he is president.  Under our tripartite system the president is the head of the executive branch and all executive branch employees implicitly derive their powers from the president. A sitting president can therefore simply refuse to allow the federal bureaucracy to present a case against him while he is president. After he has left office, that power no longer resides in him. The disposition of any potential criminal case rests with his successor. 

Proponents of presidential immunity argue that a president has to make difficult and sometimes controversial decisions. The last thing a president needs, they say, is to be looking over his shoulder, wondering if he will be criminally prosecuted for an unpopular decision. 

That argument missed the point. If Congress wanted the president to be immunized, Congress could pass a law so stating. It is not within the purview of the Supreme Court to make policy here. Nor should it be.

During oral arguments before the Court, Associate Justice Ketanji Brown addressed the policy question head-on. Why she wondered, shouldn’t the president be criminally liable for the decisions he makes if those decisions break the law? After all, lots of people in the United States make important, sometimes life-and-death decisions every day. They aren’t immune from potential prosecution. What makes the president different?

Good question.

In the United States, at least in theory, political leaders are supposed to be held to the same standard as everybody else. Getting elected (or appointed) to some office is not supposed to be a get-out-of-jail-free card. 

But, the argument goes, the justice system needs to be independent of the political system so that the administration of justice is not corrupted by politics. That is pure fantasy, not to mention a gross misreading of history. 

For example, US Attorney General John Mitchell in his role as chairman of President Nixon’s 1972 presidential campaign was convicted and served time in prison for numerous felonies related to the Watergate scandal. Nixon was pardoned by President Gerald Ford. 

Eric Holder, US Attorney General under President Obama and self-described presidential “wing man” was voted in contempt of Congress for his refusal to turn over documents related to the “Fast and Furious” Case. And let’s not pretend that US Attorney General Bobby Kennedy was anything but a political advisor to his brother, President Jack Kennedy.  Or pretend that Franklin Roosevelt didn’t try to pack the court.

One of the many problems we have in the United States is not that executive agencies lack independence. It is actually the opposite: Not only do Executive Agencies lack political accountability, they provide a political shield for their masters. 

How else to explain the machinations of Lois Lerner and the IRS in targeting conservative groups for heightened scrutiny? Or the way James Comey and the senior management of the FBI used their power to clear Hillary Clinton and target Donald Trump? Or the letter released by 50 senior past intelligence operatives claiming that the (obviously true) Hunter Biden laptop story was Russian propaganda? The list goes on.

Let’s be clear. We are not suffering from an outbreak of Presidential lawfulness. Presidents have gotten into the habit of ruling by decree via rule-making in the executive agencies. 

Consequently, the problems we actually have include: (1) executive lawlessness on a grand scale; (2) accompanied by Congressional indifference, (3)  all of which have been aided and abetted by the judiciary’s deference to executive agencies as a result of its 1984 Chevron decision. (Note: Chevron Deference as the doctrine is known may very well be on the chopping block this term). 

So of course, former President Trump’s claim of immunity from criminal liability should be dismissed out of hand. It probably won’t be; regretfully, some accommodation to the “rigors of the Presidency” will probably find its way into the ruling.   

The proper way to handle this is for Congress to write into law any exceptions to Presidential criminal liability that they seek. And to be politically accountable at the ballot box for their vote on the law.  The Supreme Court should stay out of it. And having a president looking over his shoulder is not such a bad idea.  


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